Going through a divorce? Don’t forget to update your Will!

This article was originally published by The Divorce Magazine

30 April 2021

Going through a divorce process is stressful. There are lots of things to think about and one of these is likely to be what you should do to protect your hard-earned money.


It is essential to have a suitably drafted Will in place to ensure that your assets pass according to your wishes in the event of your untimely death.

If you die without a valid Will, the intestacy rules will dictate how your assets are distributed following your death.

If you are married without children, the intestacy rules state that your entire estate will pass to your spouse. If you are married with children then your spouse keeps the first £270,000 and all the personal possessions. The remainder of the estate is divided in half, with one half passing to the spouse and the other half being divided equally between the children.

A divorce is only legally finalised once decree absolute has been granted. If you were to die before this, without a valid Will, a substantial portion of your assets would pass to your spouse – this is not an ideal scenario for most people.

This outcome can be avoided by making a Will stating who you want your assets to pass to. If you have young children, it is likely that a flexible Will containing some form of protective trust would be best for you. The Will would appoint trustees to manage funds for your children on your behalf until they reach a certain age. It would also address who should be guardian(s) of your children in the event that you and their other parent die whilst the children are under the age of 18.

If you already have a Will which benefits your spouse, you ought to update this early on in the divorce process. It is not unheard of that someone will die whilst part way through divorce proceedings, with the unintended consequence of assets passing to their spouse.

Even once the divorce process is complete, it is important to note that divorce does not revoke a Will. It is clearer and better to take control and prepare a new Will which does exactly what you want it to do.

It is easy to push preparing a Will to the bottom of the to-do list. However, as part of the divorce proceedings you will most likely be taking a closer look at your assets and financial position. This is an important step in the process of making a Will, so it makes sense to tick this off the list at the same time.

It can be difficult to know what sort of Will you want (or need) during the divorce proceedings when you do not know what your asset position will be at the end of the process. Rather than taking the risk of waiting to update your Will, it is advisable to ask your solicitor to prepare a “holding Will” for you. This can put some very simple protections in place during the interim. The holding Will can easily be revisited once the divorce and financial settlement are finalised.

When reviewing your finances and your Will, you should also ensure that you do not overlook assets which do not usually pass by Will, such as life policies written in trust, death in service benefits and pensions. Any nomination forms and expressions of wishes should be brought up to date to reflect your wishes.

Note: All references to “marriage” above include civil partnerships and references to “spouse” also include civil partners.

This article was originally published in The Divorce Magazine on 26 April 2021: Going through a divorce? Don't forget to update your will!

Further information

If you would like any further information or advice about the topic discussed in this blog, please contact Stephanie Mooney or our Private Client team.

 

ABout the author

Stephanie Mooney is an Associate in the Private Client team . She advises on succession planning, the preparation of Wills, inheritance tax, trust creation and administration, mental capacity and the administration of estates.

 

 

 

Latest blogs & news

#FreeBritney - How her sad case would never happen in the UK

Deputies are typically appointed because individuals cannot make decisions for themselves due to illness, like Alzheimers or dementia, old age or perhaps as a result of a catastrophic personal injury or medical negligence. 

Financial Abuse – how to spot the signs

There are several reasons why someone may need the assistance of a financial deputy, stemming from incapacity due to an accident or a consequence of old age. There is however a darker side to this type of work that Court of Protection lawyers are seeing more and more of. This relates to those who have suffered some form of financial abuse and/or undue influence.

Managing compensation after a spinal injury

After a spinal injury the long-term impact on your life and that of your families can be significant. You may need a care package, a new home or adaptations to their existing accommodation, therapies and specialised equipment.

Death in the digital age – continuing your online life

The pandemic has changed the world – there is no doubt we are all “online” far more now than before. Social media now extends into every aspect of our lives, from those notorious repetitive baby pictures to those ‘should never have been posted university photos‘. We collect and share moments of our lives in the digital world.

Should I set up a joint lasting power of attorney for my mother?

In the latest edition of the Financial Times Money Q&A, Jemma Garside, senior associate in our private client team answers a question: "Should I set up a joint lasting power of attorney for my mother?"

I am an attorney – can I make gifts on behalf of a donor?

Subject to any restrictions or conditions in the Lasting Power of Attorney (“LPA”), a property and affairs attorney can make gifts on the donor’s behalf to the donor’s friends, family members or acquaintances on customary occasions. 

Going through a divorce? Don’t forget to update your Will!

Going through a divorce process is stressful. There are lots of things to think about and one of these is likely to be what you should do to protect your hard-earned money.

I’m an attorney under a Lasting Power of Attorney – what happens next?

A donor must have the mental capacity to make a Lasting Power of Attorney (“LPA”) for property and affairs and health and care. The completed LPA is then sent to the Office of the Public Guardian (the “OPG”) for registration. Each page of the registered LPA will be stamped with ‘VALIDATED-OPG’.

Business LPAs - How to safeguard against a future incapacitated partner, director or shareholder?

As a business owner/shareholder, what would happen to your business if you were unable to make decisions – would someone be able to authorise payments or enter into contracts and keep the business running? 

Lasting Powers of Attorneys for business and professional affairs

Lasting Powers of Attorney (LPAs) are vitally important documents. Our previous blogs have touched upon what LPAs are and top tips for anyone planning on putting an LPA in place. Most individuals should at least put in place a financial LPA to cover their home and personal finances. It is however a good idea in some cases to have a second financial LPA.

Don’t make an awful year even worse…Separation and Capital Gains tax

The last 12 months have put an awful lot of pressure on the family unit and sadly this has led to a spike in separation and divorce amongst married couples. With the end of the tax year fast approaching (last day Monday 5th April – Easter Monday) it is timely to consider the tax consequences of separations.

ACC Guidance update – when does a deputy need COP approval for legal work?

Whilst managing the property and affairs of another person a Deputy appointed by the Court of Protection may come across issues that require them to pay for legal advice and assistance on their behalf. Examples could include purchasing a property, challenging a care plan or obtaining advice about a dispute. 

Nothing like bad succession planning to ruin a good reputation

Partner and head of our Private Client team, James Ward, writes about the importance of entrepreneur's putting in place a succession plan to safe guard their reputation. 

Ten top tips of Lasting Powers of Attorney (“LPAs”)

LPAs are important, and are steadily growing in popularity as individuals realise how necessary they are to support friends and family in the event that they lose mental capacity. Our previous blog gave an overview of how LPAs work and the requirements for making them. This time, we focus on our ten top tips for LPAs.

What are Powers of Attorneys?

A Power of Attorney is a very important estate planning tool, especially when an individual loses capacity. Whilst the term ‘Power of Attorney’ seems to be thrown around a lot, it is often misunderstood or not used correctly. In fact there are several different kinds of powers of attorney that can be used for different purposes.

Estate Planning 2021 – Looking beyond COVID-19

As we find ourselves in another national lockdown, the New Year presents an opportunity for individuals to review their assets and conduct some succession planning.

Discretionary investment management and Lasting Powers of Attorney

Phoebe Alexander and JIm Sawer blog about lasting powers of attorney and engaging Discretionary Investment.

“Hello, can you hear me?” – video-witnessing of wills to be made legal in England and Wales

Big news was announced by the Government at the end of last month: legislation will be introduced to allow remote electronic witnessing of wills – including for some that have already been made – in a significant amendment to the long-standing requirements. However, it will only be temporary.

Capital Gains Tax – Take steps now to avoid a likely “tax grab”?

Chancellor  Rishi Sunak has asked the Office of Tax Simplification to review Capital Gains Tax (“CGT”). CGT is charged on the profit/increase in value on sale or gift of assets. The rates are 18%-28% on disposals of residential property and 10%-20% on other assets.  There’s an annual exemption of £12,300 per taxpayer. Disposal of your main residence is tax free and “Entrepreneurs Relief” may see the first £1million of the gain on the sale of a business charged to CGT at the lower rate of 10%.

Lost Will - Lost Inheritance?

On the death of a person known to have made a Will, it’s pretty rare that the Will can’t be found...

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility